IP Notions

Thursday, March 29, 2007

When I was getting my J.D. (1994-1997), laptops in the classroom were not unheard of, but not by any means commonplace. By the time I went back for my LL.M. at Cardozo, laptops were pretty much de rigeur, and my initial insistence on taking notes by hand (I eventually gave in to the dark side, for various reasons) flagged me clearly as old-school, emphasis on "old."

That plethora of laptops exists outside of school, as well. I doubt I need to belabor the point to anyone reading this in a Starbucks, or most libraries, or any number of public spaces in your standard issue metropolitan area; just look around. And it goes pretty much without saying that the overwhelming majority of these laptops are equipped with WiFi connectivity.

Now, if you want to see the future of things, stop calling them laptops. Call them nodes.

There's lots of coolness tucked away in the internets, but at the core, one of the truly big ideas of the internet was the shift from a one-to-one model to the many-to-many model. This is true both on the technical, file transfer level - a single file going from point A to point Z will pass, in whole or in part, through many systems and connections besides the ones leading directly out of A or into Z - and on the level of content - in that theoretical Starbucks you're sitting in, you (and hopefully some others) are reading a blog, and the tattooed hipster sipping his latte next to you is writing a blog, and the barrista is wondering if her YouTube video's gotten any views, and that little girl who just came in with her father is planning her next MySpace post, etc.

In simple terms, any computer (technical level) or site (content) on the net is (or could be) having a lot of simultaneous conversations with a lot of other computers/users/sites/whatever.

That's all well and good. But the many-to-many model is only accurate a few steps away from the edge of that famous internet cloud we all know and love. (Much cooler image.) At the very edge, it's still a very limited conversation: your computer talks to your router, and your router talks to your ISP.

The idea of tweaking that model to fix (read: interconnect) the endpoints - mesh computing - isn't, strictly speaking, a new one. (In fact, one of the best features of the $100 Laptop is it's out-of-the-box mesh capability.) (click the little computers to prick up their ears, drag 'em to move them around.)

But I'm blogging it now because I just stumbled upon WiPeer. (There's a hat-tip that belongs here, but I don't remember who gets it.) I dropped it on my laptop, did a quick install, and within a few minutes I hadmy earson. This was the first application that I've encountered that moves the mesh idea forward with such a low transaction cost on entry.

That is, I'm fairly tech-savvy, but even I'm a little chary of messing with my networking and wireless settings. Moreover, if I'm going to be a part of this experiment, I don't really want to sacrifice anything for it; I don't want it to interfere with my computing experience, my regular networking, etc. And I'm not installing anything with adware, spyware, annoying-ware, intrusive-ware, or really anything-ware. And I kind of don't want to think too hard about the installation process or settings, either.

WiPeer - with whom I am not affiliated in any way - seems to fit the bill. And while it's not open source, I can't imagine that the protocol is so abstruse as to prevent clever third parties from developing clever manipulations of the system. One of the first I can imagine is sharing an internet connection among meshed computers. (Go back and look at the one laptop per child demo, but keep the laptop on the far right (near the globe) "deaf" until the end)

But why am I noting this here? What's the IP import of the evolution of a true mesh?

Basically this is just a peek inside the can of worms. Think about how my laptop becoming a server changes the way the law looks at me. Am I an ISP? A (protected) internet router? an end-user? Do I deserve DMCA safe-harbor? If you're in that Starbucks right now, and paid the $10 for the day pass to use the T-Mobile wireless there, and then you mesh with a few other laptops there and they piggyback on your bandwidth... what if the aforementioned tattooed, latte-sipping, blogging hipster is (a) downloading music illegally, (b) uploading porn, (c) uploading kiddie-porn, (d) posting a crypto algorithm to an internationally available message board, (e) hacking into military systems?

What about file sharing within the local mesh? Take "Jack My IPod" to the next level. Or what about mesh-casting (I made that word up), where I can have music come through your computer instead of the radio on my shelf? What counts as "publishing" something now?

So that's the can of worms. And it's starting to open. It's going to be a mess, but it looks to be pretty cool, too.

--Ben D. Manevitz

[PostScript: It turns out that "meshcasting" isn't completely my neologism, but I don't think the results of the linked Google search (on 3/30/2007) demonstrates usage with the meaning I've given it.]

Monday, March 19, 2007

So it seems Carol Burnett is suing the necessary parties behind Family Guy because they appropriated her cartoon "charwoman" character and for disparaging her personally, etc. (Hat tip to Ron Coleman, here.)

It takes little imagination to anticipate that the studio will claim parody as a defense, at least in part. But it's clear that the studio still has its PR people doing the talking, instead of its lawyers, because the reported statement by the studio does a nice job of making the lawyers' jobs much harder: "'Family Guy,' like the 'Carol Burnett Show,' is famous for its pop culture parodies and satirical jabs at celebrities."

You can just hear the lawyers groaning. If it's a pop culture parody, then there's an arguable defense; if it's a satirical jab at a celebrity, then you've got a problem.

That distinction, made by courts and practitioners alike and premised on the Campbell v. Acuff-Rose decision, is actually a pretty fair one, to a point. The reasoning starts with the eminently reasonable assertion that if I'm going to make fun of (comment on, disparage, analyze, play on, whatever) Work X, I need to be able to "conjure up" Work X sufficiently. The point of a joke is that it builds on and then subverts expectations; in the case of parody the expectations in question is the original work.

Once I move away from commenting on the work itself, though, that rationale breaks down. If I want to make fun of {anything NOT Work X}, I should be able to do so without calling on someone else's copyright-protected work; I certainly can't say that I need Work X.It's not uncommon (and there's an example of litotes right there) to see accused infringers raise the parody defense - more often than not inappropriately - and it drives me up the wall. Yiddish mit Dick and Jane and the JibJab video are two examples that spring to mind, but there are myriad others. (And quite honestly, I think the Supremes decision concerning Big Hairy Woman was a stretch, as well.)

The way to think of it is to ask if there's another work besides the allegedly infringED work that could serve the purposes of the allegedly infringING work just as well. So if I wanted to point out some inherent flaw or hypocrisy in the Dick and Jane books I would have to use the Dick and Jane characters, scenarios, cadence -- I would have to evoke Dick and Jane. But if I want to make a point about teaching Yiddish in little-kid-book terms, then my ends would be served as well by evoking Dick and Jane as by evoking Thomas the Tank Engine or Poky Little Puppy.

Similarly, This Land is Your Land speaks to a certain unity of Americans across social or cultural divides, and set the JibJab animation up nicely since it addressed a certain animosity and divisiveness across social/cultural divides, while at the same time making a more subtle point about citizens being united in their disdain for the politicians in question. The song was a great choice, but certainly not the only choice possible to serve that purpose.

So too, in the instant case. You have to ask, "what's the joke?" If the point is that Carol Burnett presents herself to the world as particularly moral or upright, and the gag is directed to undermining that, then you've got a parody. Family Guy couldn't make that point about Carol Burnett unless they evoked Carol Burnett. (A little back-story: according to The Smoking Gun the Family Guy had asked to use Carol Burnett's theme song in an episode, and she refused.)

On the other hand, if Family Guy was just making a point about... well, it's hard to think of it out of context. If Family Guy was making a point about how celebrities of the past had fallen, under this analysis then that's satire and that's not protected. Sort of.

A parody that more loosely targets an original than the parody presented here may still be sufficiently aimed at an original work to come within our analysis of parody. If a parody whose wide dissemination in the market runs the risk of serving as a substitute for the original or licensed derivatives (see infra, discussing factor four), it is more incumbent on one claiming fair use to establish the extent of transformation and the parody's critical relationship to the original. By contrast, when there is little or no risk of market substitution, whether because of the large extent of transformation of the earlier work, the new work's minimal distribution in the market, the small extent to which it borrows from an original, or other factors, taking parodic aim at an original is a less critical factor in the analysis, and looser forms of parody may be found to be fair use, as may satire with lesser justification for the borrowing than would otherwise be required.

At one level, the footnote is nicely in line with the rest of the analysis and contemporary thinking on Fair Use, in which the fourth statutory factor is considered first among equals. The Court here saying, essentially, that where there's less market substitution the requirements are more relaxed, and when there's more risk of market substitution it is "more incumbent on one claiming fair use to establish . . . the parody's critical relationship to the original."

(Sidebar: Some argue that the Campbell decision steps back from seeing factor four as first-among-equals. I don't read the opinion -- especially footnote 14 -- that way, and in any case at least one Circuit has held that factor four is still primary, and that's the way Professor Hughes teaches it.)

Read closely, however, footnote 14 opens the door to satire being fair use. "[W]hen there is little or no risk of market substitution . . . looser forms of parody may be found to be fair use, as may satire with lesser justification for the borrowing than would otherwise be required." (emphasis mine).

I call this exquisite because there's a huge problem with the parody/satire distinction and how parodic fair use doctrine has evolved. At first blush, the parody/satire distinction makes sense, and seems to leave plenty of room for the free speech that is the raison d'etre of Fair Use in the first place.

But on closer analysis it becomes clear that parody is far too narrow a defense. Looking at each case individually, the parody/satire distinction works. That is to say, the 'real' Dick and Jane people claim (rightly) that the Yiddish with Dick and Jane book isn't a parody of Dick and Jane, but a satire or social commentary (or just a joke or other expression) that leverages Dick and Jane to make a broader point, and they can point to Poky Little Puppy and Thomas the Tank Engine to make their case, claiming that those would serve just as well.

Similarly, the Guthrie estate could make the same claims about the JibJab video, pointing to some other song that approximates the underlying message of This Land is Your Land. And Carol Burnett could make the same argument, as well. If the message is that celebrities of the past have been brought low. . . I'm sure somewhere there's a relevant animation of Gallagher out there somewhere.

The problem arises when the situation is looked at globally. Because Dick and Jane points to Poky Little Puppy, but Poky Little Puppy is protected by copyright, too. And so is Thomas, and so are most songs that would serve instead of This Land, and so is that Gallagher animation, and so on.

We live in an incredibly referential world, where a huge chunk of our lexicon points to and leverages the expression of others, the vast majority of which is legally protected (by copyright and/or trademark). There's an ongoing conversation threading its way through our culture, and it's becoming more and more difficult to participate meaningfully in that conversation without stepping a little bit over the lines that have apparently been drawn.

How many times, for instance, have you heard or read a poem that takes a mostly octameter acatalectic trochaic poem -- which describes adequately for these purposes The Ravenby Poe -- and applies it to some light subject such as cats or hardware malfunctions (or even a not-so-light subject like bombs in Italy)?

Now, okay. The Raven is in the public domain, but pretend for a minute that it was still protected. The linked poems could at least arguably infringe, or at least come close to infringing, and a more comprehensive search could probably turn up so-called parodies that hew more to the line set by The Raven than these do. As well, those poems are emphatically NOT parodies of Poe's poem. They say nothing about, and are not intended to say anything about Poe's poems or Poe himself.

What they do, though, is use the cultural currency that inheres in Poe's poem - the fact that it's so well known, the fact that it's so dark and so effective at communicating that darkness. The poems use that currency as a launching point for their own contributions to the hum of creativity, taking something light and treating it with too much seriousness, or (in the case of that last one) taking something serious and recasting it in terms more readily available to a reader.

It's those contributions that are being stifled under the current proprietarization (there's probably a better word for that) of culture and expression. When we think of the phrase "fair use" without out lawyers' hats on, we think that kind of use should be allowed, because it's fair. Fair to the creator, because it's only taking that which they already sent out into the world, and fair to the world because it allows us to have richer, more subtle, more complex interactions within it. When we put our lawyers' hats back on, though, that expression is disallowed.Fair use is supposed to be the safety valve for exactly that sort of problem, but the way fair use has been limited -- particularly by the current understanding in practice of parody/satire -- is limiting the doctrine's ability to serve that purpose. Footnote 14 begins to address that issue, by opening the door for "satire," for which I want to read {NOT parody}, where the economic harm to the original creator is minimal.

I don't think the Caroll Burnett - Family Guy case will take us there, but you never know. In any event it will be interesting to see where and how the doctrine develops, and if Footnote 14 is ever given its due.

Thursday, March 15, 2007

Everyone else is talking about the whole Viacom-YouTube brouhaha, so I thought I'd pipe up as well. There's been a lot of good analysis done, pretty much, but I want to chime in with some small tweaks to the analysis that I think have been missed.

I've heard and read people out there arguing about the question of YouTube as a service provider under the DMCA, but I don't think a lot of time should be spent on that question. Whatever you want to say about the mechanics of how it goes about its business, YouTube isn't any different from Compuserve or AOL or Joe ISP, and it's exactly the sort of actor that the DMCA was designed to protect. Viacom may try to make the argument, but it seems spurious.

And so, Tweak the first:

Let's assume away an argument that YouTube isn't a service provider as imagined by the DMCA. Instead, Viacom's going to have to try to get Google/YouTube out of the safe harbor by other means. Most likely under 512(c)(1)(B), under which Viacom's going to claim that Google makes money from the infringing material and has the ability to control the activity.

I don't know if Google's ever taken an official position here, but I've heard it argued that Google keeps ads off the pages where the videos are actually displayed specifically to try to stay on the right side of this clause. And in this, it seems it's Google's turn to be silly; It's hard to countenance an argument that Google's not making money from content on a certain page just because there aren't any ads on that specific page when there's clear monetization of the property as a whole. Google's business is ads and eyeballs, and the videos - infringing or not - drive the eyeballs.

Instead, the question is going to turn on Google's ability to control, which will probably devolve onto an analysis of the state of technology. If Google has that ability, which is to say, if it's technically feasible for Google to control the uploading of infringing works, then it's possible that the statute means that Google has to do so. The judicial interpretation of "ability" should certainly include a feasibility/practicality aspect, but who knows how that's going to go. Google has started using a filtering technology, but - presumably - Viacom's not happy with that.

It's possible that Viacom's also trying to work on 512(c)(1)(A)(ii), claiming that Google is "aware of facts or circumstances from which infringing activity is apparent," but I think that the analysis comes down to the same inquiry; Taking Viacom's allegations as true for a minute - Google is aware that there are a lot of infringing works on YouTube - but even so, identifying infringing clips among the bajillions of clips on YouTube is a technical question.

There's another argument of Viacom's that I haven't seen getting a lot of attention. It's a bit technical, but might turn out to be the stealth claim that landsharks Google. Since I haven't seen any analysis on the claim... Tweak the second:

As nicely summarized in the aforementioned GoogleWatch post, Viacom claims that "YouTube is also deliberately interfering with copyright owners' ability to find copyrighted works" by limiting search returns to 1,000 hits. 512(i)(1)(B) limits the safe harbor to service providers that "accommodate[] and do[] not interfere with standard technical measures." Said technical measures are defined in 512(i)(2). It's not untenable for Viacom to argue that by limiting search results in the manner claimed, Google is interfering with such technical measures.

Google would counterargue that the limitation is necessary to avoid the imposition of "substantial costs on [Google] or substantial burdens on their systems or networks," as allowed in 512(i)(2)(C), but I don't know... seems a bit tetchy to me.Finally, I just want to poke at the DMCA for a minute. A lot of the people with whom I find myself sharing coffee don't like the DMCA. But I actually think that it's not so bad; particularly in that it has two qualities admirable in a statute: (1) it actually comes close to doing what it set out to do and (2) it's at least pointed in the right direction, which is to say that what it sets out to do is what I think should be done with regard to an otherwise thorny problem.

{Edit} In response to the comment below, I clarify that I'm addressing here very specifically the mechanism for dealing with online copyright infringement. Other aspects of the DMCA, including the anticircumvention provisions, are subject to a separate analysis. {/Edit}

That tepid defense of the statute aside, there are some important weaknesses in it, and I think the Viacom/YouTube situation makes some of those weaknesses clear. And so, Tweak the third, which is not so much a tweak as a whinge.

Without going into the whole story, I should disclose that I have taken advantage of the DMCA notice and takedown provisions, in order to successfully (and quickly) stop a splogger from using (whole cloth) a post from my other (pseudonymous) blog. So I have first-hand experience of the DMCA working the way it's supposed to work.

On the other hand, the first phase of the dust-up between Viacom and YouTube demonstrates what I think is a significant weakness in the scheme as it stands now. Of the 100,000 take-down notices lodged with Google by Viacom, many (if not most) were probably overbroad. Say it ain't so, Viacom, but it seems that that they just did keyword searches and sent the notices. (Note: the link points to Just an Online Minute; the third response down is ostensibly from a Viacom rep denying the claim.)

Under 512(c)(3)(A)(v), the notification of claimed infringement must include a "statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law." Under 512(c)(3)(A)(vi), that statement is made under penalty of perjury.

But the "penalty of perjury" isn't really where the statute has any teeth. The real insurance against abuse (on this side of the equation) lives in 512(f)(1), which imposes liability for damages including attorney's fees on anyone who knowingly misrepresents that the material is infringing.

But those remedies don't extend to the knowing misrepresentation of other elements of the infringement notice - and I would argue that the remedies should so extend. Moreover, I think the DMCA should make clear that the "knowing" standard in question is an objective standard, which is to say that it includes "should-have-known."

It's a small change, but one that would, I think make the DMCA even better at getting to where it seems to be pointing.

Tuesday, March 6, 2007

I realize it's a thing that many people do. Even smart people. But it still bothers me no end when people conflate the terms "copyright" and "trademark," particularly when the offending party is someone who should know better. In the article I'm going to point to in a moment, it's even worse, because the author keeps switching back and forth.

Disney, and Porn:

A UK mobile phone porn producer has successfully pushed back at Disney. Turns out that the very-small-screen blue film producer trademarked registered the trademark A PLACE WHERE DREAMS COME TRUE. Disney uses the phrase in promoting its theme parks. According to the article, "Preparations for a court case had been made, but Disney lawyers have now backed down."

What that means exactly isn't clear, though it seems that backing down involves little more than not suing, and instead pretty much just infringing and waiting (daring) the little guy to sue. Disney is using THE PLACE WHERE DREAMS COME TRUE.

Yeah, you read that right. Disney has "backed down" by using the phrase exactly as used and registered by someone else but for changing the indefinite article to the definite article.

Okay, so you're not likely to think that the porn guy is behind the theme park. But if it was the other way around, you know that Disney would be All. Over. That.

Back to the Annoying Thing, for a minute:

Look at that article again... Is it a copyright dispute? A trademark dispute? Grrrr....

At some point during the festivities the current editors of the journal approached me with a waiver allowing them to put the article (full text) online. (No link, because I don't think the site's up yet.) I had already granted the necessary permissions by email, but they - wisely in my opinion - wanted a signed document to the effect.

I signed off with only a cursory glance at the (admittedly short) document to make sure nothing was being made exclusive. And I joked to my neighbor that as an IP lawyer, signing something so blithely should have sent up some red flags.

But further discussion brought out an interesting point. With regard to "regular" writings, the value the Constitution and the copyright laws protect is essentially a sort of traditional sales value made intangible. That is, I have something, you want it, and I want to get paid for it; in a situation where you're unwilling to pay, I'd be fine with you not being able to get it.

With regard to legal scholarship (and a few other contexts), however, I thought it interesting that the model is flipped. I have something, and I'd love it if you'd read it. Really, please. And if you think it's smart or interesting or worthwhile, pass it on!

The value to the author inheres in the connection of the author's name to the article and the ideas in it. An author doesn't expect you to get paid for the right to read the article, or even to riff on the article. But he or she would like to get paid for being the person who thought those thoughts and expressed them, presumably because it indicates an ability to think other, similar thoughts and express them similarly well.

As long as properly cited and not otherwise passed off as another's, an author generally won't be husbanding the six exclusive rights so exclusively.

What is important to an author, though, is the source-identification aspect of the article and its use. That is, I really want the article connected to me and my name/identity.

And in that sense, it's neat how copyright concerns fold into trademark concerns; particularly the traditional (non-dilution) sorts of trademark concerns.

Taking that a step further, though, I thought it was cool how that sort of copyright/trademark overlap led directly to a set of concerns that look very much like moral rights.

An author's interest in having his or her name identified as the source of an article, and no one else's incorrectly identified tracks nicely to Attribution/Paternity; the author's interest in having that work represented in such a way as to accurately reflect its original meaning tracks similarly to Integrity. (See, Berne article 6bis.)

I thought it was interesting to see the flow as copyright implicated trademark implicated moral rights.